ACSBlog

On Saturday we posted a piece by Indiana University Maurer School of Law Professor Steve Sanders regarding distinct paths the Supreme Court could take in the consolidated cases challenging states’ bans on same-sex marriage. Sanders' guest post was noted in a Jan. 18 article by The Washington Post’s Robert Barnes examining a number of thoughts on how the high court might handle the questions before it. The Atlantic contributing writer and law professor Garrett Epps also cited the Sanders' piece in a Jan. 19 article. (For more analysis of the questions before the justices, see University of Minnesota law school professor Dale Carpenter’s commentary for The Washington Post’s “The Volokh Conspiracy” blog.)

Today ACS Board member Paul M. Smith, a longtime Supreme Court litigator and partner at Jenner & Block, took note of the matter before the high court and looked ahead to the work remaining to stop discrimination against LGBT persons.

It’s great to finally know that this Supreme Court will almost surely resolve the merits of claims for marriage equality this year. Many have commented at how quickly things have moved since the Court invalidated a key part of the Defense of Marriage Act in 2013 in the Windsor case. But that key ruling was itself the product of long years of hard work and struggle. The movement has had the advantage of being able to plan careful steps leading up to this moment – attacking the sodomy laws, seeking marriage equality under state constitutions, demanding that the federal government recognize existing marriages of same-sex couples despite DOMA, and now claiming a federal constitutional right to marriage equality. It looks as if that strategy will now be vindicated.

The New York Times is reporting today that many Republican political operatives are pleased at the prospect of the Court taking this issue out of the political debates by resolving it before the next presidential campaign. My guess, however, is that immediately after a victory on marriage equality the focus would shift rather strongly toward the need to prohibit private discrimination against LGBT persons and the opposition of most Republicans in Congress to a federal anti-discrimination law. That could become a significant issue in the upcoming campaign.

by Elise C. Boddie, Associate Professor of Law, Rutgers University-Newark; former director of litigation NAACP Legal Defense & Education Fund, Inc.; and a member of the ACS Board of Directors.

One of the many indelible images of the civil rights era is a black and white picture of an African-American boy, maybe nine or ten years old, holding a poster in front of the Dallas County courthouse in Selma, Alabama. The year is 1964. The boy’s small hands are clutched around the edges of his poster, which in plain, scrawled lettering, calls for people to register to vote in the name of “freedom.” We cannot see his eyes because they are averted from the camera. Instead, he has fixed his gaze on a group of policemen who are about to descend upon him and, as we later learn, arrest him just after the picture is taken.[1]

The picture is a reminder that the right to vote is more literally secure than it was in Selma in 1964. Less than a year later, Selma would emerge as the birthplace of the 1965 Voting Rights Act, following a march from Selma to Montgomery, led by Dr. Martin Luther King, Jr. and a host of civil rights leaders, including now-Congressman John Lewis. An earlier attempted march to Montgomery led demonstrators over the Edmund Pettus Bridge, where they were beaten mercilessly by Alabama state troopers before having to turn back, all in full view of the national press.[2] The horror and disgrace of that moment helped catalyze national support and the political will to pass voting rights legislation.[3]

We rightly celebrate and honor Dr. King as the “drum major for justice”[4] who helped bring that fight to fruition, along with the countless, nameless thousands – the young Selma boy among them – who laid their bodies on the line so that future generations could exercise their constitutional rights. The police no longer beat African Americans in the street for trying to register; and literacy tests, which barred so many Blacks, Latinos, and other people of color from voting, no longer exist as a result of the 1965 Act. The frontal indignities of Jim Crow at least are gone.

And yet, like a weed with roots deep beneath the surface, other practices soon emerged in their place, including at-large voting schemes,[5] racially-discriminatory annexations[6] and redistricting plans that sought to “crack” or “pack” minority voters in order to dilute their voting strength.[7] Evidence of this adaptive discrimination carries through to the present. For example, following the record turnout of voters of color for Obama in the 2008 and 2012 presidential elections states enacted restrictive laws that made it harder to vote.[8]

Against a record of “unremitting and ingenious defiance of the Constitution,”[9] Congress included in the Voting Rights Act a core provision that limited the authority of states with “the most aggravated records of rank discrimination against minority voting rights”[10] to unilaterally change their voting practices. This “preclearance” provision, known as Section 5, required covered jurisdictions with certain indicia of low voter participation to secure federal approval of any proposed voting changes[11] by demonstrating that they would not disfranchise minority voters.[12] In a landmark case, South Carolina v. Katzenbach, the Supreme Court upheld the Act against a constitutional challenge,[13] as it would in later cases brought by jurisdictions that sought to evade the statutory protections for minority voters.[14] In 2013, however, the Supreme Court gutted Section 5 in Shelby County v. Holder, striking down a companion provision that established the scope of Section 5’s geographic coverage.[15] While acknowledging that voting discrimination persists, [16] the Court concluded that the coverage provision no longer reflected the most “current” manifestations of such discrimination. In light of “dramatic” improvements in the landscape of voter suppression, the Act’s incursion on the “equal sovereignty” of the states was no longer justified.[17]

After Shelby, fifteen states enacted laws that discouraged voter participation.[18] Although the precise impact of these laws is hard to determine, voters of color appear to have been disproportionately affected in at least five states – Texas, Alabama, North Carolina, Virginia, and Georgia, each of which had been covered by the Act’s preclearance provision before Shelby and each of which had also experienced a significant increase in the population of voters of color.[19] Thus, in a time of burgeoning “minority” voting power, states have actively sought to limit accessibility to the polls. The timing, of course, is hardly coincidental, but rather – as a Texas federal district court judge concluded with respect to that state’s photo identification law[20] – appears calculated to suppress minority turnout.[21]

by Steve Sanders, who teaches constitutional law, constitutional litigation and family law at the Maurer School of Law, Indiana University Bloomington.

When the Supreme Court decided Friday to hear four marriage equality cases, it ordered briefing on two separate questions: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and “2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” (Emphases added.)

By splitting the question in this way, the Court appears to be saying that marriage recognition is conceptually and doctrinally distinguishable from marriage creation. This may seem like hair-splitting – I’ll explain why it’s definitely not – but first, forgive me for indulging in a bit of “feeling vindicated” (is there a Facebook status for that?).

I’ve been flogging this idea – that in addition to a right to marry, there is a constitutional right to remain married, and that non-recognition of valid same-sex marriages should be seen as a distinct Due Process Clause problem – since as far back as 2008, in essays for this blog (here and here) and others (here, here, here), and in a 2012 article in the Michigan Law Review, which I titled “The Constitutional Right to (Keep Your) Same-Sex Marriage.” (I followed up with an article last year arguing it was also time to revisit the conventional wisdom that the Full Faith and Credit Clause does not apply to interstate marriage recognition.)

My suggestion at the time -- before anyone thought the whole issue would be at the Supreme Court this quickly -- was that nullification of existing marriages was a greater harm and more urgent question that federal courts could address to pave the way for a later right to marry.

Initial reaction among some of my academic colleagues was skeptical. When I work-shopped the “right to remain married” paper at the University of Chicago, even the students piled on about why they didn’t buy it. Andy Koppelman, my commentator that day, said that state courts applying choice-of-law doctrine, not federal courts doing constitutional law, should handle the recognition problem. A couple of my old professors at Michigan Law suggested my argument was “advocacy.”

But scholars hope to advance the law, and signs started to appear that that was happening. The district judge in the Obergefell case (the name the Supreme Court’s opinion likely will carry, since it’s first in the cert grant) graciously credited my work in holding that Ohio had to recognize the marriage of two men who had been married in Maryland. (Something I had written on this blog about his earlier opinion in the same case may or may not have played some role.) Several more courts also dealt with recognition of existing marriages as a distinct issue, and the Michigan article has been cited in a number of merits and amicus briefs. Last June, the Tenth Circuit, in striking down Utah’s marriage ban, commented that “we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married.”

So now, the right to remain married is before the Supreme Court, and speculation has begun about what the Court might be up to.

A half century ago, in Boire v. Greyhound, 376 US 473 (1964), the United States Supreme Court opined that two or more employers could exist as “joint employers” for the purposes of labor relations. Elaborating on this joint employer doctrine, the United States Court of Appeals for the Third Circuit, in a case known as NLRB v. Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117 (3rd Cir. 1982) held that “the joint employer concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment.”

The joint employer doctrine allows for the imposition of liability against entities that do not sign the employee’s paycheck and do not provide monetary benefits but – still – in other ways exercise or share control over the terms and conditions of employment. Last month this tiny gem of labor doctrine formed the basis of 13 complaints, encompassing 78 separate charges, brought by the General Counsel to the National Labor Relations Board against McDonalds USA, LLC, and McDonald’s franchisees as “joint employers.”

The complaints allege that the respondents interfered with employees’ rights to engage in concerted-protected activity, that is, organise a labor union, and in some cases retaliated against employees for doing so. While the substantive allegations are to some degree routine, the use of the “joint employer” doctrine to impose liability on the parent company – albeit the entity that probably does not pay workers directly – is the more interesting part of the case. The issuance of a complaint by the NLRB General Counsel is not a finding of liability; it is the beginning of a process that will cause the case to proceed to trial before an Administrative Law Judge, review of any decision by the full NLRB, and perhaps a hearing before a United States Court of Appeals where the decision will be enforced or overturned. Whatever the outcome, renewed focus on the joint employer doctrine is important in an era where employment paradigms are so complex that a myriad of entities may play a role in decisions that impact individual workers.